Citation Nr: 1144434
Decision Date: 12/05/11 Archive Date: 12/14/11
DOCKET NO. 03-23 270 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUE
Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a low back disorder (previously claimed as residuals of a back injury) and, if so, whether service connection is warranted.
REPRESENTATION
Veteran represented by: Mark R. Lippman, Attorney at Law
ATTORNEY FOR THE BOARD
C. Ferguson, Counsel
INTRODUCTION
The Veteran had active service from March 1969 to October 1970.
This matter comes before the Board of Veterans' Appeals (Board) originally on appeal from an October 2000 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that, in a December 2000 written statement, the Veteran requested a hearing before a Veterans Law Judge. Thereafter, in December 2004, the Board contacted the Veteran to clarify whether he still wished to attend a Board hearing. In January 2005, the Board received the Veteran's response that he no longer desired the hearing. We, therefore, believe that all due process has been met with respect to the Veteran's hearing request. 38 C.F.R. § 20.704.
The Veteran's request to reopen his previously denied claim for service connection of a low back disorder was previously denied by the Board in February 2005, and the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2007 Order, the Court found that the Veteran had not been provided with proper notice with respect to his request to reopen the claim, in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006), vacated the February 2005 decision, and remanded the case to the Board.
The case was subsequently remanded in November 2008 and December 2009 by the Board for further notice and development and is now ready for decision.
FINDINGS OF FACT
1. In a January 1975 RO rating decision, service connection for residuals of a back injury was denied, on the basis that the Veteran's back disorder had no relationship to service. The RO explained that, although treatment records showed current low back pain and service records showed that he was treated in January 1970 for a contusion to the right flank, the service records made no reference to an actual low back injury and the separation examination made no reference to any back complaints or defects.
2. Because the Veteran did not appeal the January 1975 RO rating decision, that decision is final.
3. Evidence received subsequent to the January 1975 rating decision does not bear directly and substantially upon the issue of service connection for a back disorder, nor is it, by itself or in conjunction with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of this issue.
CONCLUSION OF LAW
1. The January 1975 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011).
2. New and material evidence has not been presented, and the claim of entitlement to service connection for a low back disorder is not reopened. 38 U.S.C.A. §§ 5103A, 5108, 7105(c) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.159, 20.302, 20.1103 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.
If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and to establish entitlement to the underlying claim for the benefit sought by the claimant. The claimant must also be notified of what constitutes both "new" and "material" evidence to reopen the previously denied claim. The Court further held that, in the context of a claim to reopen, VA look at the bases for the denial in the prior decision and describe what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial.
The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor his representative has alleged any prejudicial or harmful error in VCAA notice, and the Board finds, based upon the factors discussed herein, that no prejudicial or harmful error has been demonstrated in this case.
In October 2001 and August 2003 VCAA notice letters, the Veteran was informed of the evidence needed to establish entitlement to the underlying claim of service connection for his claimed low back disorder. He was also advised regarding what evidence VA would obtain and make reasonable efforts to obtain on his behalf in support of his claim.
In particular regard to Dingess requirements, the Veteran was informed, in a March 2006 due-process letter, as to how VA determines the disability rating and effective date once service connection is established. The claim was subsequently readjudicated, which remedied any timing defect. Further, because the request to reopen is denied for reasons explained below, no disability rating or effective date will be assigned.
In regard to Kent notice requirements relevant to the Veteran's request to reopen, the Board notes that this case was remanded in November 2008 with instructions that the RO ensure that all notification action required by 38 U.S.C.A. § 5103 and 5103A was accomplished and, thereafter, readjudicate the claim.
Pursuant to the Board's remand, the Veteran was sent notice with respect to his new and material evidence claim in April 2009. Although he was not provided with the definition of new and material evidence applicable to his claim (i.e., the version of 38 C.F.R. § 3.156 in effect prior to August 2001) in the April 2009 notice letter, the Veteran was otherwise provided with proper notice with respect to his claim and it is reasonable to expect that the Veteran and his attorney are aware of the definition of new and material evidence applicable to the Veteran's claim, because it was previously discussed in the October 2000 rating decision and the vacated February 2005 Board decision. Sanders v. Nicholson, 487 F.3d 881, 888-9 (Fed. Cir. 2007), George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). The Veteran's claim was readjudicated in July 2009.
Moreover, the record reflects that the Veteran has been provided with a copy of the above rating decision as well as the October 2000 rating decision, the April 2003 SOC, and the July 2009 and July 2011 SSOC, which included a discussion of the facts of the claim, pertinent laws and regulations, notification of the bases of the decision, and a summary of the evidence considered to reach the decision.
In view of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed.
Regarding VA's duty to assist in claims development, the Board notes that the Veteran's service treatment records (STRs) are included in the claims folder. In addition, post-service VA and private treatment records adequately identified as relevant to the claim have been submitted or otherwise obtained, to the extent possible, and are associated with the claims folder.
Although the record reveals that the Veteran has reported that he has been disabled since 1996 and was receiving SSA disability benefits for several medical problems, including his claimed back disorder, a remand to obtain the records was unsuccessful. A Formal Finding on the Unavailability of Federal Records dated in April 2011 detailing the steps taken to obtain the records is of record. Also, the Veteran was notified of the unavailability of the SSA records in an April 2011 letter and allowed an opportunity to submit the records himself. He responded in June 2011 that he had no such records.
Because, as discussed below, the Veteran's claim is not found to be reopened by way of the presentation of new and material evidence, a medical examination is not required under 38 C.F.R. § 3.156 (c)(4)(iii) and none has been provided.
Neither the Veteran nor his attorney has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. The Board further concludes that there has been substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In view of the foregoing, the Board will proceed with appellate review.
II. New and Material
As a preliminary matter, the Board notes that the Veteran's current claim involving a back disorder is grounded upon the same factual basis as his previous claim, which was last denied in the January 1975 rating decision. That decision is final. As a result, it is appropriate for the Board to consider this claim as a request to reopen the previously denied claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008).
In this regard, the Board recognizes that additional service records appear to have been associated with the claims folder since the January 1975 rating decision - specifically, the Veteran's service personnel records. However, upon review, these records are not shown to be relevant to the Veteran's claimed low back disorder. Thus, it remains appropriate to consider the Veteran's claim as a request to reopen a previously denied claim.
In Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108, 7104 establishes a legal duty for the Board to consider the issue of new and material evidence regardless of the RO's determination as to that issue. The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find.
Under an earlier version of 38 C.F.R. § 3.156(a) (2001), "new and material evidence" is defined as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
Effective from August 29, 2001, "new" evidence is defined as evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011).
In the present case, the Veteran's request to reopen his previously denied claim of entitlement to service connection for a back disorder was filed in 1999. Thus, the earlier version of 38 C.F.R. § 3.156(a) is applicable to this claim.
If evidence submitted to reopen a claim is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). In evaluating the materiality of newly submitted evidence, the Board does not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).
A February 1975 rating decision denied service connection for residuals of a back injury. The Veteran did not file a notice of disagreement to initiate an appeal. Thus, the February 1975 rating decision was final. No other rating decision specifically addressed the issue of service connection for a back disorder until the October 2000 rating decision, as to which the Veteran perfected the current appeal.
Summarizing the pertinent evidence of record at the time of the February 1975 rating decision, the Veteran's service medical records show that, in January 1970, he was seen for a contusion to the right flank and dispensed to duty. His October 1970 separation examination report shows his spine and other elements of the musculoskeletal system were normal, and no defects or diagnoses were noted.
A VA outpatient record received by the RO in August 1974 shows the Veteran had lower back pain most probably due to a sprain of the lower back muscles. It was recommended that he not do any work that involved use of the low back.
In denying the Veteran's claim in January 1975, the RO indicated that, although outpatient records showed the Veteran had low back pain, his service records made no reference to any low back injury. The RO noted that, while he was treated for a contusion to the right flank in January 1970, he immediately went back to duty. The separation examination made no reference to any back complaints or abnormality. The RO concluded that the current disorder shown had no relation to service.
The Veteran received notification of the rating decision and his appellate rights in March 1975, and he did not appeal the decision. Thus, the January 1975 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103.
Reviewing the evidence of record submitted in conjunction with the Veteran's request to reopen his claim, the Board notes that an August 1974 VA record shows that he sought treatment for low back pain, and radiation to the lower extremities with paresthesia. He indicated he had sustained a low back injury in Vietnam. Examination of the back showed tenderness over the lumbar spine to palpation.
X-rays of the lumbar spine were negative, and the diagnosis was low back sprain.
A November 1974 VA treatment record shows the Veteran complained of low back pain since he separated from service in 1970. It had increased when he began to work as a custodian in 1971. It had been radiating down the back of his right leg for the previous three weeks. He reported he had undergone X-rays three months before and was told it was fine. The assessment was a low back strain.
A September 1978 written statement from the State Department of Social Services showed the Veteran was treated for an industrial injury of August 1974, from January 1975 to June 1976. It was noted that he had a lumbosacral sprain.
VA treatment records dated from January 2000 to March 2001 show the Veteran complained of low back pain with radiation to the buttocks, bilaterally. He stated that he had suffered a contusion to the right flank, due to a truck accident in Vietnam, and had back pain since that time. The Veteran reported a truck accident in 1974, while in the military, and a herniated disc in 1993. Since 1993, his pain had gotten progressively worse and become constant. He reported episodic left lower extremity numbness, and paresthesias in the sole of the left foot with prolonged flexion. The assessment was chronic low back pain with no evidence of disc herniation. In September 2000, a physician opined that the Veteran's chronic low back pain etiology was due to mild degenerative disc disease, initiating a mild arthritic pain, which was further exacerbated by mechanical low back pain due to the deconditioned state of his lumbar stabilizers.
In an October 2001 statement, the Veteran indicated that he had sought treatment after his active service when he was in the Reserves in July 1973.
An October 2002 MRI report shows the Veteran's lumbar spine with multi-level degenerative disc disease. In a July 2003 VA treatment record, the Veteran complained of constant and sharp low back pain, radiating to his right thigh. Outpatient treatment records dated in July and August 2003 showed continuing treatment for low back pain.
An April 2003 response from the National Personnel Records Center indicated no medical records for the Veteran could be found from July 1973, when he stated he was in Reserve service and sought treatment for his back.
Having reviewed the evidence associated with the claims folder since the January 1975 rating decision which comprises four-volumes, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for a low back disorder.
While the Veteran's VA treatment records may be considered new evidence, in that they were not of record at the time of the previous decision, they are not material because they do not bear directly and substantially on the issue at hand. The records merely show treatment for a current low back disorder. No medical professional has attributed the Veteran's low back disorder to service. Thus, the records do not, nor does any of the additional evidence submitted in connection with the claim to reopen, demonstrate that the Veteran has a current low back disorder related to his period of active service. None of the new evidence provides competently links the Veteran's currently diagnosed low back disorder to his military service or any incident that occurred therein.
Also, the written statements provided by the Veteran relating his current back problems to his period of service and/or his active duty for training service in the Reserves are not considered new, because they are essentially duplicative of statements previously considered by the RO at the time of the January 1975 rating decision.
Further, while it appears that additional service records have been associated with the claims folder since the January 1975 rating decision, there are no records which include any reference to low back problems in service.
Thus, in summary, much of the evidence associated with the claims folder since the January 1975 denial may be considered new because it was not before VA at the time of that decision. However, none of the evidence meets the second criterion of being material, because it is not, by itself or in conjunction with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of this issue. There is no competent evidence that the Veteran's current low back disorder is related to his military service, to include Reserve service.
Accordingly, because the Board has determined that new and material evidence has not been presented, the Veteran's request to reopen his previously denied claim for entitlement to service connection for a low back disorder must be denied.
ORDER
New and material evidence has not been presented, and the claim of entitlement to service connection for a low back disorder is not reopened. The appeal is denied.
____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs